Sean N. Zeitz

This endorsement addresses a partial summary judgment motion where the court, following the Court of Appeal's decision in Co-Operators General Insurance et al., requested submissions on the appropriateness of partial summary judgment.

Due to conflicting affidavits regarding an alleged agreement to engage an accountant for partnership profit accounting and a promise to pay, and issues of access to partnership documents and potential estoppel related to the limitation period, the court found significant credibility issues.

Consequently, a mini-trial was ordered to resolve these factual disputes, including the applicability of section 11 of the Limitations Act.

The plaintiff bank moved for default judgment against the defendants for civil fraud in obtaining small business loans.

The individual defendant submitted a fictitious invoice for equipment that was never purchased and transferred the loan proceeds to various numbered companies.

Shortly after the bank began investigating, the defendant transferred his interest in his home to his spouse for no consideration.

The court found the defendant liable for fraudulent misrepresentation, awarded the outstanding loan amount plus $150,000 in punitive damages, and voided the property transfer as a fraudulent conveyance.

Libro Credit Union brought a motion to determine a priority dispute over garnished funds.

Environmental Waterproofing Inc. had garnished funds from Jokey Plastics to satisfy a judgment against Huron Tract Holdings Inc. Libro claimed priority based on a perfected security interest under the Personal Property Security Act (PPSA).

Environmental argued that Libro's claim was statute-barred and would result in unjust enrichment.

The court found that Libro's security interest was deemed continuously perfected under the PPSA and took priority over the garnishment.

The court also held that Libro's claim was not statute-barred and that there was no unjust enrichment.

The garnished funds were ordered to be paid to Libro.

This is a costs endorsement following an appeal where the appellants successfully set aside a finding that a revenue misrepresentation claim was encompassed within the original statement of claim, thereby preserving a Limitations Act defence.

Both parties claimed to be the successful party and sought costs of $20,000.

The court found that success was divided, as the appellants did not get the claim dismissed but did preserve a significant defence.

The court awarded the appellants $10,000 for the appeal and $1,500 for costs submissions, and ordered each party to bear their own costs for the motion below.

The appellants appealed an Associate Judge's decision granting the respondent leave to amend its Statement of Claim to add a revenue misrepresentation claim arising from a share purchase agreement.

The Divisional Court allowed the appeal in part, finding the Associate Judge erred in law by relying on discovery evidence to conclude the amendment was not a new cause of action.

However, the court upheld the Associate Judge's alternative finding that the discoverability of the claim under the Limitations Act involved factual disputes that must be resolved at trial.

The respondent was permitted to amend its claim, but the appellants were granted leave to plead a limitations defence.

Lynne Foulidis appealed a Superior Court order granting a charging order against her Toronto residence to Jodi L. Feldman Professional Corporation for $664,323.38 in legal fees.

The charging order was granted to secure outstanding legal fees from family litigation.

Lynne argued the property was no longer in existence for the purpose of the charging order due to a prior transfer to George Foulidis, that the lawyer's contribution was not substantial, and that there was no risk of non-payment.

Jodi L. Feldman Professional Corporation cross-appealed on costs.

The Court of Appeal dismissed Lynne's appeal, upholding the charging order, finding that the property was in existence (subject to a triable issue of fraudulent conveyance), the lawyer's contribution was instrumental, and there was a clear refusal to pay fees.

The cross-appeal on costs was also dismissed, but costs of the appeal were awarded to Jodi L. Feldman Professional Corporation.

The plaintiff, Business Development Bank of Canada, moved for summary judgment to enforce a personal guarantee against the defendant Kelly Ann Bovair.

Bovair resisted, arguing the guarantee failed for want of consideration or was unconscionable due to alleged misrepresentations by her spouse and co-defendant, Justin Carter, and the bank's failure to ensure independent legal advice.

The court granted summary judgment to the plaintiff, finding the guarantee valid and enforceable, as consideration flowed to the principal debtor, and the bank had no obligation to ensure independent legal advice given the lack of evidence it knew or should have known of fraud, misrepresentation, or undue influence.

The appellant, Bijan Naghshbandi, appealed judgments from two actions where he was ordered to repay significant debts to Shahram Heidari and Tarra Engineering Inc. The appeal raised five grounds: that the trial judge introduced a new theory of liability (joint investment), failed to provide adequate reasons for liability, did not apply a claimed credit, misstated the test for an oppression action, and erred in relying on unreliable witness testimony regarding a share transfer.

The Court of Appeal dismissed all grounds, upholding the trial judge's findings, particularly on credibility, and confirming the debts owed.

The moving party brought a motion under Rule 59.06 to vary an interlocutory injunction that prohibited him from competing with or soliciting customers of the responding party.

The court found that the responding party had failed to pursue their case with reasonable dispatch, as pleadings were not yet closed 15 months after the injunction was granted.

Furthermore, the contractual non-competition and non-solicitation periods in the Professional Services Agreement had already expired.

The court granted the motion in part, terminating the non-competition and non-solicitation obligations against the moving party personally.

Libro Credit Union Limited appealed a motion judge's order that dismissed its motion for a declaration of priority over funds held by the Sheriff in garnishment proceedings.

The motion judge had incorrectly concluded that a prior order by Gorman J. had determined the priority issue, thus deeming the appellant's motion a collateral attack.

The Court of Appeal found that Gorman J. had not made such a determination and explicitly left the priority dispute open.

The appeal was allowed, the motion judge's order was set aside, and the matter was remitted to the Superior Court for a hearing on the merits of the priority dispute.

The plaintiff brought an urgent motion for a Certificate of Pending Litigation (CPL) against a residential property after the defendant vendor failed to close the transaction due to an inability to discharge two mortgages.

The mortgages were subsequently assigned to a third party who opposed the CPL and sought to sell the property under power of sale.

The court found that while the plaintiff established a triable issue regarding an interest in land, the balance of equities under the Dhunna factors did not favour granting the CPL.

The plaintiff failed to prove the property was unique, damages were an adequate remedy, and the third-party mortgagee would suffer greater prejudice if the CPL were granted.

The applicant's former lawyer brought a motion in family court for a charging order against a property for unpaid legal fees of approximately $664,323.

The property had been transferred to the respondent husband pursuant to family law minutes of settlement.

The court held that while the motion should ideally have been brought in the related civil action commenced by the lawyer, the family court had jurisdiction and would decide the motion to save resources.

The court granted the charging order, finding the lawyer was instrumental in preserving equity in the property and that there was a triable issue regarding whether the transfer was a fraudulent conveyance, with quantification to be determined in the civil action.

The applicant father sought to set aside a domestic contract resolving child support and parenting issues, arguing the respondent mother repudiated the agreement through multiple breaches, including interfering with access and violating confidentiality provisions.

The corporate applicant, controlled by the father, also sought to enforce a mortgage on the mother's home.

The court found that while the mother breached certain access and confidentiality terms, her conduct did not amount to a repudiation or fundamental breach of the agreement as a whole.

The court also dismissed the mortgage enforcement action, finding the mother was not in default and was entitled to exercise her option under the agreement to redeem the mortgage.

The applications to set aside the agreement and enforce the mortgage were dismissed.

The plaintiff brought a motion under Rule 59.06 to set aside a consent order that struck her claims and required her to reconstitute them within 30 days.

The plaintiff's former lawyer had failed to inform her of the order or comply with the deadline due to health reasons.

The court found that the defendants failed to demonstrate prejudice that could not be compensated by costs, and that the prejudice to the plaintiff in losing her substantive rights outweighed any prejudice to the defendants.

The motion was granted, the order was set aside, and the three related actions were consolidated.

Dale Ottewell, a creditor in the bankruptcy of Christine Ann Davidson, appealed the dismissal of his motions for leave to commence a proceeding under s. 38 of the Bankruptcy and Insolvency Act (BIA) and to examine individuals under s. 163(2) of the BIA.

The s. 38 motion sought to include a house, beneficially owned by the bankrupt, in the estate, despite a prior family law order where Ottewell consented that the house would not be part of the bankrupt's property.

The Court of Appeal dismissed the appeal, finding no error in the lower court's discretionary refusal to grant leave under s. 38, as Ottewell failed to demonstrate sufficient merit and was attempting to indirectly contravene a prior consent order.

Leave to appeal the s. 163(2) motion was also denied as it concerned a procedural matter without general importance.

The plaintiff, Intercap Equity Inc., brought a motion for summary judgment to enforce a debt and a personal guarantee against the principals of the corporate debtor, Capsule Media Inc. The defendants argued that the guarantee was discharged by a novation clause in a subsequent loan agreement and that their subjective understanding of the contract should be considered.

The court found the guarantee to be a continuing guarantee, covering liabilities connected to the original loan despite subsequent amendments and restatements.

The defendants' subjective interpretations were deemed inadmissible and incredible.

The motion for summary judgment was granted, enforcing the guarantee against all defendants jointly and severally.

The moving parties brought a motion for leave to appeal the order of Gilmore J. dated September 24, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $10,000.

The moving parties (respondents on appeal) brought a motion for security for costs of the appeals under rule 61.06(1) of the Rules of Civil Procedure.

The underlying trial involved claims of unpaid loans and joint investments, which the trial judge resolved in favour of the moving parties based largely on credibility findings.

The motion judge found that while the appeals were weakly arguable, they were not frivolous or vexatious, as the responding party raised a potential error of law regarding the characterization of the payments.

Furthermore, the responding party provided evidence of sufficient income in Ontario, and there was no 'other good reason' such as fraud or hidden assets to justify the order.

The motion for security for costs was dismissed.

The applicant corporation, controlled by the respondent's former partner, brought a motion for a mandatory order compelling the respondent to redeem a mortgage on her home prior to an upcoming family law trial.

The court applied the RJR MacDonald test as modified for mandatory orders, finding the applicant failed to establish a strong prima facie case or irreparable harm.

The court dismissed the motion, noting that the validity of the underlying Minutes of Settlement was a central issue for the impending trial, and awarded costs to the respondent.

The moving party defendants sought an interlocutory injunction to restrain the plaintiffs/defendants by counterclaim from competing, soliciting vendors, and using their brand, as well as orders to unfreeze a bank account and provide an accounting.

The dispute arose from a complex business arrangement and subsequent breakdown between the parties involving the transfer of a medical aesthetics business.

The court granted the injunction against the principal plaintiff and his related entities, finding a strong prima facie case of breach of a negative covenant and irreparable harm, but declined to grant the injunction against former employees who had been terminated.

The court also ordered the unfreezing of the bank account and an accounting.